NAMs amend Competition Bill

Members of the National Assembly, on Monday amended the bill to promote competition in the supply of good and services by establishing a Commission; prohibiting collusive agreements and bid rigging; by providing for investigation and control of other types of restrictive agreements and monopoly and merger situations; promoting understanding of the benefits of competition at the beginning of the third session of the Legislative Year.

The essential function of the competition law is to promote and protect the free functioning of those markets that are open to competition. It will guard against the risk that enterprises with the market power that will choose to erect private barriers to competition or to exploit their customers.

Presenting the bill before members, Abdou Colley, Secretary of State for Trade, Industry and Employment said, in the long economic development blueprint, of Vision 2020, the government set-out its market-oriented programme of development and emphasised its commitment to a vibrant private sector which led to the introduction of a competition Bill.

“In fulfilment of this objective, my Department of State, in the year 2000, requested for assistance from the Economic and Legal Advisory Services Division of the Commonwealth Secretariat, to develop a competition policy and law suited to the economic circumstances of The Gambia. Competition is one of the main engines of economic development. It was encouraging to note that during the stakeholder consultations that the Gambian business community supports the adoption of a competition law and does not see it as a threat,” he said.

According to him, the adoption of this Bill will give confidence to those that wish to invest in The Gambia, by helping to provide a more predictable business environment. It will also be a further demonstration of the Gambia Government’s commitment to a free market economy. He added that, the law will not only apply to private sector companies, but also to companies that remain state owned, if they participate in a market that is open to competition. He further stated that, Public utilities that are subject to economic regulation under the Public Utilities Regulatory Authority (PURA) will not be subjected to the competition law, as long as they are operating within the terms of their licenses.

SoS Colley stressed that, the competition law is based on two pillars, first, the most serious anti-competition agreements will be prohibited, as these will be unlawful and may be punishable by applicable fines. “The prohibition will apply to collusive horizontal agreements, i.e, those involving collusion between firms operating in the same market and hence normally competitors. Typically, these might be cartel of knowingly fixed prices or share out markets,” he said.

The second pillar, he stated, concerns other forms of anti-competitive practices, though not unlawful, but maybe investigated if there are grounds to believe that competition is being restricted. “These includes, vertical agreements between an importer and a distributor and misuse of market power by one or more dominant firms such as the monopoly-type behaviours, denying access to essential facilities, linking the sale of one product to the purchase of another, or charging manifestly excessive or predatory prices,” he noted.

He added that, investigation will be possible where the party or parties concerned have a share of 30% or more of the relevant market, adding that where an investigation finds that competition is being restricted, without any offsetting benefits, a range of administrative remedies will be available. “There will be de minimis provisions to exclude the activities of the smallest enterprises (those with annual turnover of D250,000 or less) from the reach of the competition law.

The competition regime envisage the establishment of an Independent Competition Commission with the staff and resources needed to operate wholly autonomously locally, it is recommended that the Gambia starts with a more modest institutional structure, which can be expanded later in the light of experience. In this regard, available capacity within existing Departments of State or other state agencies such as the Central Bank and PURA will be used to undertake the tasks of investigating cases and collecting evidence on the Commission’s behalf,” he highlighted.

The Independent Competition Commission, SoS Colley revealed that it will be made up of a Chairperson and four other Commissioners, who will be individuals with relevant experience and will act on a part-time basis. The Commission he said, will have information gathering powers and will conduct any formal hearings that may be required.

“It will also have the sole responsibility for taking decisions under the competition law and for determining penalties and remedies. The Commission will also have a major role as an advocate for competition in The Gambia and its decisions will be published. It will be supported by a small secretariat, which will act as a single point of receipt of complaints and arrange for the allocation of individual cases to the body best able to conduct the investigation,” he noted.

He finally announced that, the law will make provision for a right of appeal against the decision of the Competition Commission on the Commercial Division of the High Court. “Where the Commission has imposed a penalty for the prohibition, the appeal will allow for a full review of the Commission’s reasoning. The grounds for appeal against a case decided under the investigative approach will be limited to procedural deficiencies, denial of natural justice and manifest error, and the proportionality of the administrative remedy,” he concluded.
Supporting the bill, Hon Mama Kandeh, NAM for Jimara, commended the Secretary of State and the team of experts for such a timely Bill.

Cherno Cham, NAM for Lower Nuimi said the bill will greatly revive the monopoly in the country and will help to make business tycoons understand that they are dealing with people advocating for poverty reduction.
Other supporters to the bill included Hon Sulayman Joof of Serrekunda Central, Fabakary Tombong Jatta, Majority leader and member for Serrekunda East, among others.